Ramesh Kumar vs The State
2009 Latest Caselaw 4746 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP(Crl.) No.603/2009



#     RAMESH KUMAR                         ..... Appellant
!                            Through: Ms. Rakhi Dubey, Adv.

                       versus

$     THE STATE                            ..... Respondent
^                            Through: Mr. Roshan Kumar, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?                  No

      2.    To be referred to the Reporter or not?               Yes


      3.    Whether the judgment should be
            reported in the Digest?                              Yes


: V.K. JAIN, J. (ORAL)

1. This is a petition under Article 226 of the Constitution r/w

Section 482 of the Code of Criminal Procedure for

quashing the order dated 27th March, 2009 whereby the

application of the petitioner for grant of parole was

rejected.

2. It has been stated in the petition that the appeal of the

petitioner against his conviction having been dismissed by

this court on 2nd February, 2009, he intends to prefer a

Special Leave Petition before the Hon'ble Supreme Court

and wants to engage a competent lawyer after arranging

finances for this purpose. The petitioner applied for grant

of parole vide dispatch No.1360 dated 14th February,

2009. The request having been rejected, he has filed the

present writ petition challenging the order of rejection of

parole.

3. A perusal of the impugned order shows that parole has

been rejected in view of adverse police report and

considering the fact that SLP can be filed by the convict

from the jail itself.

4. In Sunil Pulchand Shah Vs. Union Of India and Others,

(2000) 3 SCC 409, which was a case of detention in

CFEPOSA Act, a Constitutional Bench of the Hon'ble

Supreme Court held that for securing release on parole

detenu has to approach the court concerned or jail

authorities, who may impose conditions and the grand of

parole shall be subject to those terms and conditions. It

was further held that the bar of judicial intervention to

direct temporary release of a detenu would not affect the

jurisdiction of High Court under Article 226 of

Constitution or of Supreme Court under Article 32 or 136

or 142 of the Constitution to direct the temporary release

of the detenu, whose request to be released on parole had

been, in the opinion of the court, unjustifiably refused or

where in the interest of justice such an order of temporary

release is required to be made. That jurisdiction,

however, has to be sparingly exercised by the court and

even then it is appropriate that the court leaves it on

administrative or jail authorities to direct the conditions

and terms on which the parole is to be availed by the

detenu.

5. In Poonam Lata vs. M.L. Wadhawan and Others, (1987) 3

SCC 347, the Hon'ble Supreme Court inter alia observed

as under : -

"it is the appropriate government and not the court which deals with a case of temporary release of the detenu. "

"in a given case the court may be required to consider the propriety of an adverse order by the government in exercise of the jurisdiction under Section 12 of the Act. On the principle that exercise of

administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to examine the legality and propriety of the governmental action.

            There is no scope for entertaining an
            application        for     parole     by        the    court
            straightway.         The         legislative      scheme,

keeping the purpose of the statute and the manner of its fulfillment provided thereunder, would not justify entertaining of an application for release of a detenue on parole."

6. Grant of parole being an executive function, it is for the

Government and not for the Court to consider the request

made by a convict for grant of parole and pass

appropriate orders on it. If, however, the order passed by

the Government is found to be based on extraneous

reasons or is on grounds which are not relevant, or is

otherwise unjust or improper, it is open to the court, in

appropriate cases to quash such an order and direct

release on parole.

7. The learned counsel for the respondent states that the

adverse police report referred in the order whereby

parole was rejected is that (1) the petitioner does not own

any property in Delhi and (2) he may escape, if released

on parole.

8. It is not necessary for grant of parole that the convict

should own a property in Delhi or elsewhere. If that is

applied as a criterion for granting or rejecting parole, a

poor man will never be able to get parole even if he

otherwise deserves it on the facts of the case. Therefore,

an extraneous consideration has been applied by the

respondent in rejecting the request for parole. A perusal

of the status report filed by the respondent shows that the

wife of the petitioner, Smt. Sarita is residing in Delhi at E-

3/697, 4th Pushta, Sonia Vihar and is working in a factory

as a labourer. Thus, the immediate family of the

petitioner is based in Delhi.

9. A perusal of the judgment whereby the appeal filed by the

petitioner was dismissed shows that he is alleged to have

committed murder of his brother-in-law. The appeal of the

petitioner having been dismissed, Special Leave Petition

before the Hon'ble Supreme Court is his last resort. He

would, therefore, naturally be anxious to ensure that he

engages a competent lawyer and briefs him properly so

that his case is adequately presented before the Hon'ble

Supreme Court. Therefore, seeking of parole for the

purpose of engaging a Lawyer and filing Special Leave

Petition before the Hon'ble Supreme Court is eminently

justified. No doubt, the possibility of the convict jumping

the parole and not returning to the prison, to serve the

remaining sentence is a valid consideration, while

considering his request for grant of parole. In a given

case, if there is a reasonable apprehension of the convict

jumping the parole, the Govt. would be justified in

rejecting his request. In the present case, since the family

of the petitioner is based in Delhi, there is not much

likelihood of his jumping the parole. In any case, suitable

conditions can always be imposed to ensure that the

petitioner does not misuse the liberty of parole if granted

to him.

10. Keeping in view all the facts and circumstances of the

case, the impugned order passed by the respondent is

quashed and the petitioner is directed to be released on

parole for a period of one month from the date of his

release, after one week from today, on his furnishing a

personal bond in the sum of Rs.10,000/- with one surety of

the like amount to the satisfaction of the trial court

subject to the conditions that (1) he shall not leave Delhi

on any ground; (2) In Delhi, he shall live only in House

No.E-3/697, 4th Pushta, Sonia Vihar, which is presently

occupied by his wife; (3) he shall mark his presence in

Police Station Khajuri Khas at 9.00 A.M. on every Monday

and Thursday; and (iv) he shall comply with such other

conditions as the respondent may impose within one week

to ensure that he does not jump the parole.

Dasti to both the parties. The petition stands disposed of.

(V.K.JAIN) JUDGE NOVEMBER 20, 2009 SK